Hemant Gupta, J. - (1.) THE challenge in the present writ petition is to an order passed by the Debts Recovery Appellate Tribunal (for short 'the Appellate Tribunal') on 02.07.2014 (Annexure P -20) as well as sale notice dated 22.01.2013 said to be in contravention of the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short 'SICA Act'). The petitioner availed financial assistance from respondent No. 2 i.e. Punjab State Industrial Development Corporation (for short 'the Corporation') as well as from State Bank of India and Small Industrial Development Bank of India (for short 'SIDBI'). The loan share of the Corporation was 12.78%; share of State Bank of India was 76.13% and that of SIDBI was 11.09%. The petitioner was declare a sick Company on 04.02.2002 and State Bank of India was appointed as an Operating Agency. The draft Rehabilitation Scheme was circulated for revival of the Company on 02.06.2009. At that time, the total amount due to respondent No. 2 from the petitioner was Rs. 4.5 crores. The petitioner was required to pay a sum of Rs. 1 crore against the principle outstanding towards respondent No. 2 i.e. Rs. 44.30 lacs as part of the Rehabilitation Scheme framed by the Operating Agency. The Rehabilitation Scheme was sanctioned by the Board for Industrial and Financial Reconstruction under the provisions of SICA Act on 02.12.2009 (Annexure P -6).
(2.) DURING the pendency of an appeal against the said order, the respondent No. 2 initiated action under Section 13(2) of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act'). The Debts Recovery Tribunal (for short 'the Tribunal') dismissed the appeal filed by the petitioner on 21.02.2012 (Annexure P -16). The appeal against the said order was dismissed by the learned Appellate Tribunal on 02.07.2014 (Annexure P -20). It is the said order which is subject matter of challenge in the present writ petition. At this stage, it may be noticed that an appeal filed by respondent No. 2 under the SICA Act was dismissed as abated by Appellate Authority for Industrial & Financial Reconstruction (for short 'AAIFR') on 31.08.2012 (Annexure P -17) in view of the provisions of the SARFAESI Act. Consequently, an order declaring the company as sick and the Rehabilitation Scheme came to be set aside. The said orders have not been set aside. It is also the stand of the petitioner that it entered into one time settlement with SIDBI when it agreed to settle the loan account on payment of a sum of Rs. 40.47 lacs along with interest. A certificate by SIDBI of no due was issued on 01.09.2006 (Annexure P -3). The petitioner also settled the dues of the lead creditor i.e. State Bank of India and liquidated the loan account on 29.08.2011 (Annexure P -15). Thus, the petitioner is said to have settled more than 87% of its secured creditors.
(3.) THE sole argument raised by learned counsel for the petitioner is that the respondent -Corporation has only 12.78% shares in the total loan accounts, therefore, in terms of Section 13(9) of the SARFAESI Act, a creditor who has less than 'three -fourth' (now 'sixty per cent') of the shares of the secured creditors cannot be permitted to take recourse of the provisions of the Act.;